Case: 11-20138     Document: 00511695623         Page: 1     Date Filed: 12/14/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        December 14, 2011
                                     No. 11-20138
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ROSARIO GOMEZ MAYO, also known as Rosario Gomez, also known as Angel
Gomez, also known as Rosario Gomez-Mayo, also known as Rosorio Mayo
Gomez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-607-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Rosario Gomez Mayo (Gomez) appeals his sentence following his guilty
plea conviction to illegal reentry following previous deportation.                   Gomez
contends that his sentence of 30 months of imprisonment, which was the result
of an upward departure, is procedurally unreasonable because the district court
failed to adequately explain its reasons for imposing the departure. He also


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-20138    Document: 00511695623       Page: 2   Date Filed: 12/14/2011

                                   No. 11-20138

asserts that the district court improperly relied on his previous deportations
when imposing the departure. Gomez further contends that his sentence is
substantively unreasonable because the district court failed to consider his
“cultural assimilation into the United States as a basis for a downward
departure.”
      After United States v. Booker, 

(2005), sentences are reviewed
for “reasonableness.” Gall v. United States, 

, 46 (2007). Gomez did
not object to the procedural or substantive unreasonableness of his sentence.
Thus, as he acknowledges, his arguments are reviewed for plain error. See
United States v. Mondragon-Santiago, 

, 361 (5th Cir. 2006). To
show plain error, Gomez must show a forfeited error that is clear or obvious and
that affects his substantial rights. See Puckett v. United States, 

,
1429 (2009). If Gomez makes such a showing, this court has the discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See 

reflects that the district court provided adequate reasons for
the upward departure as it adopted the presentence report and stated orally and
in its written statement of reasons that it was departing upward based on the
inadequacy of Gomez’s criminal history score, as well as his repeated disregard
for the laws of the United States. See United States v. Zuniga-Peralta, 

, 347 (5th Cir. 2006). Further, Gomez’s repeated illegal reentries into the
United States are sufficient to support an upward departure. See United States.
v. Lopez-Velasquez, 

, 805 (5th Cir. 2008). Additionally, there is no
indication in the record that the district court was under the mistaken
impression that it could not depart downward.              Thus, this court lacks
jurisdiction to review the denial of the downward departure. See United States
v. Hernandez, 

, 424 (5th Cir. 2006).
      AFFIRMED.



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